Does Australian media need a statutory regulating body?

Australia currently has two bodies which overlook media standards: The Australian Press Council and The Australian Communications and Media Authority – both of which are commonly criticised for their poor functionality.

Neither of these bodies have the ability to place legally enforceable sanctions on media outlets. Australia does not have a national body with legislative power which regulates media standards across all outlets and platforms, and this has caused some to wonder if the introduction of a singular statutory body to watch over Australia’s media to ensure fair and accurate journalism is the appropriate action to take in order to regulate media standards.

After analyzing The Finkelstein Report and the current structure of The Australian Press Council, I am compelled to argue that there should not be a statutory body introduced to regulate the media – particularly not a News Media Council, as proposed in the Finkelstein Inquiry. A strengthening of available resources, stricter board membership guidelines, and fundamental structural changes are instead required for The Australian Press Council, in order to appropriately address the lack of diversity in Australia’s media.

The Australian Press Council should make multiple changes in order to oversee all platforms of the mainstream news media ensuring that publications comply with a uniform code of practice, affectively be regularly revised with advancing technologies, and be meticulous in preventing government and publication affiliated groups and individuals (including those currently employed by a publication) from harbouring any control or influence (including funding) on the self-regulatory body. While the Australian Press Council has inherent problems with self-regulation and poor functionality due to limited resources, the threat to journalists and democratic society by the introduction of a government funded media regulator is of primary concern.

Despite being one of the world’s oldest continuing democracies, Australia has one of the most extreme cases of concentration of media ownership, along with no general legal protection for freedom of expression (Sawer, Abjorensen, & Larkin, 2009). Australia’s Constitution does not state any explicit protections for freedom of speech, although, the High Court has determined that there is an implied political communication protection which exists as a fundamental requirement of the political system created by the Constitution (Walker, 1998).  Along with increasing technological advances and mediums, unappealing prospects of risky defamation cases, the lack of a constitutionally defined freedom of speech makes it considerably difficult to regulate and legislate media standards for Australian publications. It is challenging to decide the appropriate way of regulating the media without also threatening the already fragile rights of journalists in Australia.

A phone hacking scandal in Britain reinvigorated the debate about media regulations, when News of the World employees were accused of engaging in phone hacking, police bribery and exercising improper influence in the pursuit of stories. With over 4,000 victims of the illegal hacking, News of the World was shut down in July 2011 by News Corporation owner Rupert Murdoch, after the pressure from the scandal had escalated (Patching & Hirst, 2013). This case was significant for Australia because at the time of the Finkelstein inquiry announcement (and still today), Rupert Murdoch’s Adelaide-born company News Corporation owned and controlled 70% of Australia’s newspapers (Reporters Without Borders, 2011). The scandal prompted two separate government inquiries into media regulation: The Finkelstein Report and The Convergence Review. Both reports suggest in conclusion that a change in media regulations is necessary, although their strategies differ.

First, we should attempt to understand the current media regulations in place in Australia and find out why the current system is so often criticised. The regulation of the media is currently overseen by the Australian Press Council (for newspapers, magazines, and associated websites), and by the Australian Communications and Media Authority (for television and radio). We will take a further look into the structure of these existing bodies and determine whether they are satisfactorily regulating Australia’s media.

The Press Council

The Press Council’s primary duty is to confront print publications of which they have received complaints about from individuals or groups, and to encourage publications to write apologies. The Australian Press Council has been self-regulating the media since 1976, and is a non-profit organisation funded by newspaper publishers, which means the APC is reliant on media organisations signing up as members in order to gain its own funding (Pearson & Polden, 2014) – essentially, publications are paying for their own watchdog. The Press Council is not allowed to hold media organisations accountable to a set of guidelines, nor is it able to enforce media outlets to uphold their own set of ethics. This is seen to be a major downfall of the APC, along with the limited capacity itself to detect and act on breaches, rather than depending on members of the public making complaints (Spence, Alexandra, Quinn, & Dunn, 2011).

The Australian Communications and Media Authority

The Australian Communications and Media Authority holds slightly more power than the APC, and as a statutory body it has the ability to force sanctions, although it is often criticised for its procedures being drawn out, complicated, and time consuming. In the Finkelstein Report, it is noted that ‘ACMA’s processes are cumbersome and slow’ and, ‘if legal proceedings against the media are called for, they are protracted, expensive, and adversarial’ (Finkelstein, 2012). On top of that, ACMA can only intervene if a publication has committed a legal offence, not for situations when there are complaints about inaccuracy and unfairness from a media outlet. These issues can lead us to believe that the ACMA’s current practices are unsatisfactorily regulating Australia’s broadcasted media.

Media Watch

Australian Broadcasting Corporation’s weekly segment Media Watch has often been described as Australia’s most efficient media regulator, much to the assumed shame of the APC and ACMA (Pearson & Polden, 2014). Although Media Watch has no authority as a regulator with no sanctions available to it, it’s effectiveness lies in ethical breaches being exposed on national television for all to see. Former Media Watch host Jonathan Holmes has often been skeptical of ACMA, specifically focusing on ‘its slowness in following up complaints; about how reluctant it is to take the initiative itself (though it has the power to do so); and about how pathetic the sanctions are when breaches of the broadcasters’ Codes of Practice are established’ (Holmes, 2009). In light of understanding the unsatisfactory applications of the APC and ACMA, we will assess the recommendations in the Finkelstein Report and consider how affective they would be.

The Finkelstein Report

The Report of the Independent Inquiry into the Media and Media Regulation, more commonly known as the Finkelstein Review, was convened in order to determine whether the current regulation practices are rigorous enough to ensure accountability and transparency within Australia’s media (Carson, Wake, McNair, & Lidberg, 2012). The review concludes that the current system for media regulation in Australia is inadequate and does not successfully ensure proper accountability for media organisations, and that research revealed deep-seated and strongly held public concerns about the performance of the news media in Australia.

The Finkelstein Review recommends that there be a government funded statutory body called the News Media Council which would replace the APC, and integrate AMCA functions and standards (Finkelstein, 2012). Creating a government funded council with this much power sounds exceptionally alarming, that being said, the APC’s current authority and self-regulatory structure are considered unsatisfactory. We will consider the proposal in the Convergence Review and then evaluate the potential issues found within the recommendations.

The Convergence Review

The Convergence Review notes that Australia’s policy and legislation were still based on the industry and service structures of the pre-internet early 1990s, and along with the Finkelstein review, recommends replacing the APC and AMCA with an independent third body. While the suggestion seems similar to the Finkelstein Report’s recommendation, the Convergence Review was initiated in order to assess the possibility of a reduction of regulation, and as a result, the way in which the suggested body will be organised is fundamentally different. The Convergence Review suggests that the independent body be self-regulated, similarly to the APC at the moment, but with a range of different sanctions and the power to enforce them. They suggest that it be partially funded by members, and the rest would be funded by the government (Boreham, Long, & McElvogue, 2012).

Evaluating the News Media Council

There are two dominant concerns which are at the forefront of this argument against the introduction of the Finkelstein Inquiry’s proposed News Media Council: the danger of government censorship and intervention, and the threat to freedom of expression.

Let us investigate the major problems and concerns associated with the proposed News Media Council.

  • Although the Finkelstein Inquiry recommends that the government fund the council, it makes it clear that the government should play no further role in the council. Finkelstein argues that if the ABC and SBS are government funded but manage to resist government control, then his News Media Council can do so too. Government control is indeed of great concern, but Finkelstein offers no explanation of how will the government will ensure that the funding amount remains constant with periodic increases over time, and that we don’t see a major cut to funding, or loaded threats to do so, like we did during the Abbott Government in relation to the ABC.
  • The News Media Council would have authority over all media publications regardless of platform, this includes independent online news and opinion sites, including political bloggers. The Finkelstein Review suggests that:

    “If a publisher distributes more than 3000 copies of print per issue or a news internet site has a minimum of 15 000 hits per annum it should be subject to the jurisdiction of the News Media Council, but not otherwise. These numbers are arbitrary, but a line must be drawn somewhere.”

    Since the release of the inquiry, this controversial recommendation is widely recognised as being a surprisingly low threshold and a threat to independent writers.

  • Some have argued that changes to media ownership laws in general, have a tendency to increase this concentration over time, which reinforces the potential of a limited amount of key media players to influence public opinion and governments (Harding-Smith, 2011). Which means that the introduction of a statutory body would likely increase Australia’s already extreme case of media ownership concentration, and decrease the diversity of the press.
  • The inquiry suggests that the News Media Council have the ability to refer disobedient publishers to court, where they could be subject to fines or even jail time if found to be rejecting the council’s order (Pearson, 2012).
  • A regulatory body which is funded by the government could ultimately have to accept state censorship of content which the government deems too controversial (Berg, 2012).

As we now understand some of the key concerns involved in the introduction of a statutory media regulating body, it is important to recognise the arguments in favour of self-regulation of the media as well as examining the arguments against government intervention into media regulation.

Self-regulation

The Australian Press Council’s approach to self-regulation may not always be considered to be appropriate for such an important industry, especially not in the internet age. Self-regulation has a long history in Australia’s media, and is acknowledged as a valuable tool for the media by The United Nations Educational, Scientific and Cultural Organisation, who suggest that ‘freedom of expression be effectively ensured through a free, plural, independent and diversified media system which is broadly self-regulatory’ (Puddephatt, 2011).

There are a number of reasons why self-regulation does not regulate the media as effectively as intended, such as the industry not providing enough funding, members coming and going as they please, and no requirements for APC adjudications to be published (Ricketson, 2016). If we consider self-regulation to be a mediocre model of media regulatory bodies, perhaps ascertaining who exactly is doing the regulating will benefit our understanding of the structure a self-regulatory model.

The Finkelstein Inquiry’s proposed News Media Council would consist, of senior academics and the Commonwealth Ombudsman and Solicitor-General. Half the part-time members would be selected from the public, with no previous media employment experience. The other half would consist of current or former media professionals (but no media managers, directors or shareholders) (Ward, 2012).

I suggest, in contrast to the Finkelstein recommendation, that no individuals who are currently employed by a publication should be on the board of any media regulatory body, as this contributes to Australia’s already extreme case of media concentration, and conflicts of interest are bound to arise. I also suggest that any self-regulatory body be aware of any influence by media key players on individual board members or related associations, and that it not accept extra donations from publications beyond their agreed upon funding.

What changes occurred after the Finkelstein Inquiry was released?

Seven West News split from the Australian Press Council for reasons being that processes were too slow and unproductive for the WA based network, who created their own regulatory body – the Independent Media Council. This departure happened one day before the APC’s announcement that all members of the council were now required to give four years notice of withdrawal from the APC and remain part of the council throughout that period (Australian Press Council, 2012). The announcement also brought changes in that the obligations made to provide funding and comply with APC processes had become legally binding, and that members had agreed to double their funding after the Finkelstein Report was released (in the hopes of increasing their productivity, and making the introduction of the NMC harder for the government to justify).

The Herrington Recommendations

  • Australia needs to implement more simplified freedom of expression and press laws, which in turn, would improve our defamation laws – This should be Australia’s first step when considering media regulations, as this would result in an easier understanding of what protections the media and citizens are in need of.
  • Australia needs a self-regulating media council with both professionals and ordinary citizens on the board, in order to oversee all platforms of the mainstream news media ensuring they comply with a uniform code of practice.
  • There should be no government funding or influence for this council, and strict guidelines for preventing government and publication affiliated groups and individuals (including those currently employed by a publication) from any involvement with the council.
  • The council should have the ability to give sanctions and the power to take disobedient publishers to court, but should not be influenced to do so by government or media corporations.
  • The council should not accept donations from political parties or big businesses, and funding from large media corporations and members of the council should be strictly monitored.
  • The council should be regularly revised with advancing technologies. More urgently, the rules on how to regulate media through the internet need to be upgraded and changed in order to understand the complexity, malleability, and massiveness of the internet.
  • Publications shouldn’t be forced to join the council (as we have seen from Seven West removing itself from the APC for geographical and logistical reasons, there should remain other possibilities for publications), and there should be no inclusion of perks and benefits which could possibly empower the rich and already dominant publications in the field, in turn, only increasing the current media concentration.

The News Media Council as proposed in the Finkelstein Inquiry is flawed in a number of ways, and as it stands, should not be introduced as a statutory body regulating Australia’s media standards. Giving politicians (who will most certainly have their own political agenda to push) authority over the press is commonly considered to be concerning, and introducing a statutory body will only increase bias, inaccuracy and the power of massive media corporations.

The current self-regulatory structure of the Australian Press Council is inadequate, and while a statutory body should not be introduced, there should certainly be considerable changes to Australia’s freedom of expression, defamation, and press legislations. Extensive changes to the fundamental regulatory model of the Australian Press Council – with special regard for a concern of government intervention and threats to freedom of expression – are necessary in order to successfully regulate Australia’s media standards.

References

Australian Press Council. (2012). Publishers Agree on Major Stengthening of the Press Council [Press release]. Retrieved from http://www.abc.net.au/mediawatch/transcripts/1211_apc.pdf

Berg, C. (2012). The Finkelstein Report into Media and Media Regulation: Licensing, censorship and accountability. Retrieved from Institute of Public Affairs Briefing Paper: https://www.ipa.org.au/library/publication/1331177474_document_070312_-_finkelstein_briefing_paper_1.pdf

Boreham, G., Long, M., & McElvogue, L. (2012). The Convergence Review Final Report. Retrieved from Department of Broadband, Communications and the Digital Economy, Canberra.

Carson, A., Wake, A., McNair, B., & Lidberg, J. (2012). The Finkelstein Inquiry into media regulation: Experts respond. The Conversation. Retrieved from https://theconversation.com/the-finkelstein-inquiry-into-media-regulation-experts-respond-5675

Finkelstein, R. (2012). Report of the Independent Inquiry Into the Media and Media Regulations. Retrieved from Department of Broadband, Communications and the Digital Economy, Canberra.

Harding-Smith, R. (2011). Media Ownership and Regulation in Australia: Centre for Policy Development Issue Brief.

Holmes, J. (2009). Regulating the regulator. Australian Broadcasting Corporation. Retrieved from http://www.abc.net.au/news/2009-12-16/regulating-the-regulator/1179862

Patching, R., & Hirst, M. (2013). Journalism Ethics: Arguments and Cases for the Twenty-first Century. United Kingdom: Taylor & Francis.

Pearson, M. (2012). The media regulation debate in a democracy lacking a free expression guarantee. Pacific Journalism Review, 18(2), 89-101.

Pearson, M., & Polden, M. (2014). The Journalist’s Guide to Media Law: A handbook for communicators in a digital world. Sydney: Allen & Unwin Academic.

Puddephatt, A. (2011). The Importance of Self Regulation of the Media in Upholding Freedom of Expression. Brasilia Office: United Nations Educational, Scientific and Cultural Organization.

Reporters Without Borders. (2011). Is the government trying to get more control over the media?   Retrieved from https://rsf.org/en/news/government-trying-get-more-control-over-media

Ricketson, M. (2016, June 13). Media complaints-handling body essential. The Australian. Retrieved from http://www.theaustralian.com.au/business/media/media-complaintshandling-body-essential/news-story/41773d6016d62f5825337291166cd59c?login=1

Sawer, M., Abjorensen, N., & Larkin, P. (2009). Australia: The State of Democracy. Sydney: Federation Press.

Spence, E. H., Alexandra, A., Quinn, A., & Dunn, A. (2011). Media, Markets, and Morals. United Kingdom: Wiley-Blackwell.

Walker, S. (1998). Lange v ABC: the High Court rethinks the “constitutionalisation” of defamation law. Murdoch University Electronic Journal of Law, 5(1).

Ward, D. (2012). Breaking news: An assessment of the Finkelstein Report’s News Media Council. Media and Arts Law Review, 17(4), 337-367.

Feature image credit: https://sookmunx.wordpress.com/2013/04/04/self-regulation-in-malaysia-2/
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